BOISE - More than 500 people filled Idaho’s state Capitol Wednesday to speak out against legislation designed to protect freedom of religion - by allowing Idahoans to refuse service to those they object to on religious grounds.
In hours of passionate testimony overwhelmingly against the bill, people said it would undo the protections in local anti-discrimination ordinances in seven Idaho cities that protect against discrimination based on sexual orientation or gender identity.
“This bill before you codifies discrimination,” said Boise City Council President Maryanne Jordan. “If a man were to beat his wife and claim to an officer (on religious grounds) that she was not being submissive enough, an arresting officer could be subject to litigation.”
“Please do not codify prejudice in the name of faith,” implored Judy Cross, a deacon at Treasure Valley Metropolitan Community Church. “Please do not allow religious freedom to become religious abuse.”
After more than three and a half hours of testimony overwhelmingly against the bill, the measure’s sponsor, Rep. Lynn Luker, R-Boise, said he never meant for the measure, HB 427, to be a “sword for discrimination.” He proposed amending it, so religion could be used only as a defense in such cases, not as a reason to sue.
Rep. Vito Barbieri, R-Dalton Gardens, said, “I have to agree as a co-sponsor, that this was not … my intent.” He moved to send the bill out for amendments “to have that fix, and maybe other fixes that we will have.”
A North Idaho lawmaker, Rep. Eric Anderson, R-Priest Lake, said the bill was just plain wrong, and tried to get it killed outright, but was outvoted 11-5.
By the same vote, the panel then sent the bill to the full House, but not for passage – it was sent to the House’s amending order, where any member of the House may offer amendments.
“It’s a terrible bill,” Anderson said after the hearing. “We’re going to have a jury or a court determine the sincerity of my religion?”
Meanwhile, an Idaho Attorney General’s opinion raised questions about the constitutionality of both this and another, related bill that’s still pending.
The opinion concluded that HB 427 conflicts with the Idaho Tort Claims Act and could be vulnerable to a constitutional challenge. The bill, according to the opinion by Deputy Attorney General Brian Kane, “could subject employees to personal liability when they are simply doing their job, and a court later decides that the state or local government policy burdened free exercise of religion.”
Kane offered an example: A case in which it was a state prison’s policy not to provide kosher or Halal meals to Jewish or Muslim prisoners, and the prisoners sued. “Then liability could fall upon the employees least responsible for the decisions – those who cook or serve the food,” Kane wrote.
Luker said he proposed the bill to “correct a defect” in Idaho’s current freedom-of-religion law, which allows people to claim religion as a defense against government action against them, but not to use it in private-party disputes involving a law or government action.
“That’s a defect that was brought out in a New Mexico case recently,” he told the House State Affairs Committee.
That New Mexico case involved a wedding photographer who refused to photograph a same-sex marriage ceremony, and was penalized under that state’s prohibition of discrimination based on sexual orientation. Idaho law has no such prohibition, though anti-discrimination laws to cover sexual orientation have been proposed unsuccessfully in the state every year for the past eight years.
Kane also examined Luker’s other proposal, HB 426, to prevent professional licenses from being suspended or revoked for violations based on the license holders’ “sincerely held religious beliefs.” He concluded that that bill is “likely vulnerable to a constitutional challenge,” and violates both the United States and Idaho constitutions. Luker said he hadn’t yet had a chance to review the opinion, and whether or not HB 426 gets a hearing is up to legislative leaders.
House Minority Leader John Rusche, D-Lewiston, who was one of the lawmakers who requested the Attorney General’s opinion, said, “I think they’re both bad ideas.”
At the close of testimony, which ran from 9 a.m. to past noon without a break, Luker said, “I think this is what our system is all about. This is my favorite part of the process, when people can come in and share their feelings and their opinions. It has had an impact.”